The High Court has refused Cork Harbour Alliance for a Safe Environment (CHASE) leave to appeal a decision remitting Indaver’s Ringaskiddy incinerator planning application to An Bord Pleanála for further consideration.
Mr Justice David Barniville ruled on 26 April 2022 that CHASE’s proposed questions did not raise points of law of exceptional public importance, and that an appeal would not be desirable in the public interest. Both requirements had to be met under section 50A(7) of the Planning and Development Act 2000.
The application followed earlier judgments in CHASE’s judicial review of the Board’s 2018 grant of planning permission. CHASE succeeded on two of 11 grounds: the court found the decision was affected by objective bias because of the involvement of a Board member, Mr Boland, and accepted CHASE’s argument about the identity of the prospective applicant under the strategic infrastructure development rules. No party sought leave to appeal those findings.
In a separate remittal judgment in October 2021, the High Court quashed the planning decision on the bias ground and ordered the application remitted to the Board. It directed that reconsideration begin at the stage immediately before the Board’s 23 October 2017 decision not to circulate further information from Indaver for responses. The court did not direct the Board to seek further information, though it recommended that the Board consider using its statutory powers.
CHASE opposed remittal and later proposed four groups of questions for appeal, concerning pleading requirements, the effect of the Board member’s involvement at earlier stages, the fairness of relying on possible further information, and the court’s power to remit after a finding of objective bias.
Justice Barniville said the remittal decision applied established principles on pleadings and remittal to the particular circumstances. He also held that one proposed question about admitting further evidence did not arise from the earlier judgment: the court had considered the additional material CHASE offered, but found it sought to make a new case after the main judgment.
The judge said the circumstances were unusual, but that did not establish uncertainty in the law. He also noted the original decision had been quashed and that the former Board member would not take part in reconsideration. In weighing the public interest, he cited the statutory policy that High Court decisions in planning judicial review cases should generally be final.
The court refused leave to appeal. It listed the matter for mention on 4 May 2022 to address the final orders in the proceedings.